QUESTION: May a sifting judge, as part of a mediation
training program, (1) observe three mediation sessions conducted by other persons serving
as mediators, and (2) conduct two pro bono mediations, so long as the mediations would not
be in connection with any case pending in the judge's court and the judge would receive no
compensation for her services?

ANSWER: Yes. A sifting judge may observe mediation
sessions conducted by another mediator and may, without compensation, serve as a mediator.
Canon 4F provides: "An active full-time
judge shall not act as an arbitrator or mediator for compensation outside the judicial
system, but a judge may encourage settlement in the performance of official duties." Canon 3B(8)(b) concerning ex-parte communications
does not prohibit a judge from "conferring separately with the parties and/or their
lawyers in an effort to mediate or settle matters, provided, however, that the judge shall
first give notice to all parties and not thereafter hear any contested matters between the
parties except with the consent of all parties."

Since Opinion No.161 in 1993
first addressed the propriety of a judge serving as a mediator, alternative dispute
resolution procedures have become more favored as a state policy in numerous legislative
enactments, more favored by judges because of their effectiveness in disposing of disputes
at every level, more favored by state agencies which now build ADR procedures into many of
their rules, and more favored by individuals who include ADR procedures in their
agreements and rely on them to resolve more and more of their disagreements. In light of
this growing reliance on ADR procedures as an adjunct to traditional forms of
adjudication, and in light of the favorable experience of many judges in encouraging and
participating in alternative dispute resolution procedures, we withdraw in its entirety
our former Opinion 161 and find in the Code no prohibition against an active judge serving
as a mediator or arbitrator without compensation so long as the judge follows the
guidelines of Canon 3B.(8)(b).

There is no prohibition against an active judge serving as a mediator or arbitrator
without compensation so long as the judge follows the guidelines of Canon 3B.(8)(b) and
that such a mediation or arbitration does not interfere with the prompt and efficient
management of that judges own court docket.